With the recently issued opinion in Florida’s 5th District Court of Appeal, school administrators may be wondering when a teacher’s speech is entitled to constitutional protection under the First Amendment, and when can the teacher be disciplined.
To bring you up to date, teacher free speech is governed by a framework that seeks to balance the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the school, as an employer, in promoting the efficiency of the public services it performs through its employees. Courts employ a two-part test to determine whether a public employee’s speech is protected by the First Amendment: (1) whether the employee spoke on a matter of public concern (i.e., one of significance or importance in society at large), and, if so, (2) whether the employee’s right to free speech outweighs the employer’s interest in an efficient workplace without disruption.
The Fifth District Court of Appeal, a state appellate court in Daytona Beach, recently held that a public-school teacher’s free speech rights were violated when the Duval County School Board disciplined the teacher for posts he made on Facebook. The teacher made several Facebook posts/reposts around the time of the 2020 election that were critical of Senator Bernie Sanders and political liberals generally. The School Board determined that these posts violated the teacher code of conduct and issued a written reprimand, suspended the teacher for three days without pay, and required him to complete diversity training.
The case originally went to a hearing with the Tallahassee-based Division of Administrative Hearings (DOAH), after which the Administrative Law Judge (Robert J. Telfer) agreed that discipline of the teacher was appropriate, considering the subject matter of the Facebook posts and reposts. The School Board accepted the DOAH Judge’s recommendation of discipline in its final decision.
In reversing the School Board’s decision, the Fifth District concluded that the teacher’s Facebook posts involved a matter of public concern, a Presidential candidate, and did not have any meaningful impact on the School Board’s operations or create any disruption. Important to the Court’s decision was that:
- the Facebook posts were made from the teacher’s personal computer;
- the Facebook posts were made outside of school on the teacher’s own time;
- the teacher did not use school resources;
- the teacher did not communicate with or contact students;
- the teacher did not display any improper conduct on or with school property;
- the teacher’s Facebook posts did not involve false or defamatory statements about the school district, administrators, teachers, or students;
- and the Facebook posts did not involve matters of school administration.
The lesson here is that schools should not be too quick to discipline teachers for speech they disagree with or find offensive. Teacher discipline is more likely to be constitutional if the speech disrupts school operations (i.e., the speech was made at school during school hours, the speech was made using school resources, or the speech involved school-related matters).
Case Information: Caggiano v. Duval County School Board, Case No. 5D2023-2081, 2025 WL 568466 (Fla. 5th DCA Feb. 21, 2025).
For more information, contact one of the following attorneys at the Firm:
Bob L. Harris, Esq., at [email protected]
Cameron H. Carstens, Esq., at [email protected]
Nicholas R. Cleary, Esq., at [email protected]